Shadan Educational Society Ltd., Hyderabad V. Dy.CIT, Central Circle-4, Hyderabad

MA 18/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1628 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 07-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ADAGIRI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MISC. APPLN. NO.18/HYD/2014 (IN ITA NO.141/HYD/11) : ASSESSMENT YEAR 2006 - 07 M/S. SHADAN EDUCATIONAL SOCIETY, HYDERABAD. ( PAN - AAETS 8676 E) V/S. DY. COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE 4, HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI MOHD. AFZAL RESPONDENT BY : SHRI B.YADAGIRI DR DATE OF HEARING 21.2.2014 DATE OF PRONOUNCEMENT 28 .3 .2014 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE ACT, ASSESSEE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 5 TH MARCH, 2014 IN SO FAR AS IT RELATED TO ASSESSEES APPEAL, ITA NO.141/HYD/2011 FOR THE ASSESSMENT YEAR 2006 - 07, ON THE GROUND THAT CERTAIN MISTAKE APPARENT FROM RECORD HAS CREPT INTO THE SAME. 2. REITERATING THE AVERMENTS /CONTENTIONS URGED IN THE PRESENT APPLICATIONS, LEARNED COUNSEL FOR THE ASSESSEE, AFTER NARRATING THE FACTUAL BACKGROUND LEADING TO TH E FILIN G OF THE PRESENT APPLICATION, SUBMITTED THAT AGGRIEVED BY THE FINDING OF THE CIT(A) UPHOLDING THE COMPUTATION OF TH E CAPITAL GAINS AT R.1,19,47,806, ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL, BY RAISING THE FOLLOWING TWO GROUNDS - 2. THE LEARNED COMMISSIONER OF INCOME - TAX ERRED IN CON F IRMIN G THE O R DER OF THE ASSESSING OFFICER WHEREIN THE SAL E CON S I DE RATION OF THE PROPERTY WAS ADOPTED AT R S .2,10,00,000 AS AGAIN S T THE ACTUAL SALE CONSIDERATION OF R S .1,75,00,000// - . MA NO.18/HYD/2014 (IN ITA NO. 14 1 / HYD/20 1 1) SHADAN EDUCATIONAL SOCIETY, HYDERABAD. 2 3. THE LEARNED COMMISSIONER OF INCOME - TAX ERRED BY NO T CON S I D ERIN G THE LOAN TAKEN BY TH E SO C I E TY TO AN EXTENT OF R S .3,500,000/ - WHICH WAS REPAID BY WAY OF CHEQUES AND THE TRANSACTION ARE DULY RECORDED IN THE BOOK S OF ACCOUNTS AND AL S O CONFIRMED BY THE ASSESSING OFFICER. TAKING US THROUGH PARAS 61 AND 62 OF THE ORDER OF THIS TRIBUNAL DATED 5.3.2013 IN WHICH THE ABOVE GROUNDS ARE DISPOSED OF, IT HAS BEEN POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL WHILE UPHOLDING THE ORDER OF THE CIT(A) ON THE POINT AT ISSUE, HAS NOT ADJUDICATING UPON GROUND NO.3 OF THE ASSESSEE, EXTRACTED ABOVE. IT IS SUBMI T TED THAT THE LEARNED COUNSEL THA T DURING TH E COU R SE OF PROCEEDINGS BEFORE THE COMMISSIONER OF INCOME - TAX, IT WAS SUBMI T TED THAT THE ASSESSEE RECEIVED R S .5 LAKHS IN CASH AND RS .82,50,000 EACH BY WAY OF BANKERS CHEQUE OF H SBC AND FU R THER RS.17,50,000 BEACH AGGREGATIN G TO R S .35,00,000 WAS RECEIVED FROM SHRI MOHD. SALEEM BY WAY OF BANKERS CHEQUE NO.S 951971 & 951973 DATED 16.11.2003. THIS LOAN OF R S .35,00,000 WAS REPAID BY WAY OF CHEQUE NO.611315 AND 7611316 OF BHARAT OVERSEAS BANK ON 27.11.2006. T HE LEARNED COMMISSIONER OF INCOME - TAX HAS CO N FIRMED THE TAKING OF LOAN AND I T S SUBSEQU E N T REPAYMENT IN HI S OR D ER IN PARA 7.2. HOWEVER, WHILE CONFIRMING THE ASSESSING OFFICERS CONTENTION THAT SALE CON S I D ERATION AS R S .2, 1 0,00,000 IGNORED HIS OWN FINDING THAT THE ASSESSEE HAS TAKEN LOAN FROM MOHD. SALEEM AND REPAID THE SAME. IT IS POINTED OUT THAT THE CONTENTION OF TH E ASSESSING OFFICER WAS NOT THAT THE ASSESSEE HAS TAKEN LOAN OF RS.35,00,000 OTHER THAN THE AMOU N T M E NTION E D IN HSBC ;BANKERS CHEQUES 951971 AND 911973. THE RE FORE, IT IS PL E ADED THAT THE COMMISSIONER OF INCOME - TAX AFTER GI V ING A FINDING IN REL A TION TO RECEIPT OF LOAN AND ITS SUBSEQUENT PAYMENT FAILED TO APP R ECIATE THE FACT THAT ASSESSEE HAS RECEIVED ONLY RS.1.75 C RORES TOWARDS SALE CON S I D ERATION OF PR O P E RTY AND THE OTHER TWO AMOU NTS REFLECTED ON THE ROUGH SHEET AS RS.17 ,50,000 UNDER EACH NAME IS LOAN TRANSACTION AND NOT PAR T OF SALE CON S I D ERATION. IT IS ALSO POINTED OUT THAT THE ROUGH SHEET DOES NOT MENTION ANY SALE CON S I D ERATION OR LOAN OR FOR THAT MATTER ANY NATURE OF TRANSACT ION, IT ONLY SHOWS CERTAIN FIGURES. THE ASSESSEE HAS CLARIFIED THE NATURE OF TRANSAC T ION BEFORE THE ASSESSING OFFICER, CIT(A) AND MA NO.18/HYD/2014 (IN ITA NO. 14 1 / HYD/20 1 1) SHADAN EDUCATIONAL SOCIETY, HYDERABAD. 3 ALSO B E FO R E THE HONBLE BENCH DURING THE COURSE OF APPEAL HEARING . I N THE CIRCUMSTANCES, IT IS PL E ADED THAT THE TRIBUNAL OM ITTED TO ADJU D ICATE ON GROUND NO.3 TAKEN BY THE ASSESSEE BEFORE THE TRIBUNAL, AND CONSEQUENTLY, THE ORDER OF THE TRIBUNAL DATED 5.3.2013 IS LIABLE TO BE RECTIFIED/RECALLED. 3. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE CONTRARY, STRONGLY SUPPORTED THE O RDER OF THE TRIBUNAL AND SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 5.3.2013, AND ALL THAT THE ASSESSEE IS SEEKING IS A MERE REVIEW OF THE MATTER, BY REAPPRAISING THE EVIDENCE ON RECORD, AND THE CONTENTIONS OF THE PARTIES. 4. W E HEARD BOTH SIDES AND PERUSED THE MATERIAL ON RECORD, IN THE LIGHT OF THE PRESENT APPLICATION OF THE ASSESSEE AND THE ORDER OF THIS TRIBUNAL DATED 5.3.2013. THE ISSUE IN DISPUTE BEFORE THE TRIBUNAL IN GROUNDS NO.2 AND 3 OF THE ASSESSEE IN ITA N O. 141/HYD /2011 FOR ASSESSMENT YEAR 2006 - 07, RELATES TO CORRECTNESS OF THE ACTION OF THE R EVE N U E AUTHORITIES IN ADOPTING THE SALE CONSIDERATION AT RS.1,7 5 ,00,000 AND NOT AT RS.2, 1 0,00,000, CONSIDERING THE PLEA OF THE ASSESSEE THAT AMOUNTS AGGREGATING TO RS.35,00,000 CONTAINED IN THE ABOVE FIGURE OF RS.2, 1 0,00,000 REPRESENT THE LOANS TAKEN BY THE ASSESSEE FROM SHRI MOHD. SALEEM AND SMT. NUSARAT JAHAN, AND REPAID BY THE ASSESSEE. IT IS THE CASE OF THE ASSESSEE, AS TAKEN NOTE OF BY THE TRIBUNAL IN PARA 60 ON PAGE 29 THEREOF THAT THOUGH THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) CONFIRMED THE REPAYMENT OF LOANS BY WAY OF CHEQUES, WHILE TAKING THE SALE CONSIDERATION AT A FIGURE OF RS.2, 1 0,00,000, THE FINDINGS WITH REGARD TO LOAN TRANSACTIONS HAVE BEEN IGNORED. THE TRIBUNAL TOO, ACCORDING TO THE ASSESSEE, HAS NOT CONSIDERED THE PLEAS OF THE ASSESSEE BEFORE IT, AS ALSO IN THE VERY GROUNDS, WHILE UPHOLDING THE ACTION OF THE REVENUE AUTHORITIES IN ADOPTING RS.2, 1 0,00,000 AS THE SALE CONSIDERATION. ON A READING OF THE TOTALITY OF THE ORDER OF THE TRIBUNAL, WE FIND THAT THE TRIBUNAL HAS TAKEN DUE NOTE OF THE FACTUAL BACKGROUND OF THE MATER AND THE CONTENTION OF THE PARTIES BEFORE IT, INCLUDING THE CONTENTION OF THE ASSESSEE IN THE GROUNDS IN QUESTION, MORE MA NO.18/HYD/2014 (IN ITA NO. 14 1 / HYD/20 1 1) SHADAN EDUCATIONAL SOCIETY, HYDERABAD. 4 SPECIFICAL LY IN GROUND NO.3, BEFORE ULTIMATELY UPHOLDING THE ACTION OF THE REVENUE AUTHORITIES. THE CONCLUSION ARRIVED AT BY THE TRIBUNAL, WHILE UPHOLDING THE ORDERS OF THE REVENUE AUTHORITIES IS BASED ON APPRECIATION OF THE MATERIAL EVIDENCE, VIZ. SEIZED MATERIAL, CONTENTIONS OF THE PARTIES AS TO THE COMPLETENESS THEREOF, AND THE INFERENCES THAT COULD BE DRAWN THEREFROM, AND THE CORRECTNESS OF THE VIEW TAKEN BY THE REVENUE AUTHORITIES IN THE ORDERS IMPUGNED BEFORE IT. THE ORDER OF THE TRIBUNAL CLEARLY REVEAL CONS IDERATION OF ALL THE GROUNDS TAKEN BY THE ASSESSEE IN THE APPEAL BEFORE IT. AS SUCH, THERE CANNOT BE ANY GRIEVANCE ON ACCOUNT OF NON - CONSIDERATION OF ANY ASPECT OF THE MATTER, INCLUDING ANY CONTENTION OF THE ASSESSEE, BY THE TRIBUNAL IN ITS ORDER DATED 5 .3.2013, AND ALL THAT THE ASSESSEE IS SEEKING BY THE PRESENT APPLICATION AND THE PLEADINGS BEFORE US, IS ONLY REVIEW OF OUR ORDER BY REAPPRAISING THE MATERIAL ON RECORD. SINCE SUCH A REVIEW IS NOT PERMISSIBLE IN THESE PROCEEDINGS UNDER S.254(2) OF THE ACT , THE SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION OF PATENT/OBVIOUS MISTAKES IN THE ORDER OF THE TRIBUNAL, WE FIND THAT THE PRESENT APPLICATION OF THE ASSESSEE IS DEVOID OF MERIT. WE ACCORDINGLY REJECT THE SAME. 5 . IN THE RESULT, ASSESSEES APP L ICATION IS REJECTED . ORDER PRONOUNCED IN THE COURT ON 28 TH MARCH, 2014 SD/ - SD/ - (CHANDRA POOJARI ) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 28 TH M ARCH , 2014 COPY FORWARDED TO: 1. M/S. SHADAN EDUCATIONAL SOCIETY LTD., C/O. MOHD. AFZAL , ADVOCATE, 121 - 5 - 475 SHERSON'S RESIDENCY, FLAT NO.402, CRIMINAL COURT ROAD, RED HILLS, HYDERABAD 500 004. 2 . DY. COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE 4, HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) V II HYDERABAD MA NO.18/HYD/2014 (IN ITA NO. 14 1 / HYD/20 1 1) SHADAN EDUCATIONAL SOCIETY, HYDERABAD. 5 4. COMMISSIONER OF INCOME - TAX CENTRAL , HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S